Wednesday, October 31, 2007

The dog ate my sanity -- employee's strange behavior may place company on notice of "serious health condition"

Employees' excuses for missing work come in all shapes and sizes. For Beverly Stevenson, it was her fear of dogs that kept her away from her warehouse job at Hyre Electric Company, and her strange behavior on the job that, according to the 7th Circuit, should have put her employer on notice of a serious health condition for FMLA leave.

On February 9, 2004, a stray dog somehow entered the workplace and approached Stevenson. She immediately felt physical and mental symptoms, including a headache, a rush of blood to her head, a tightening of her neck and back, and agitation. When her supervisor entered the work area, Stevenson began screaming obscenities that animals shouldn't be there. After three or four minutes she calmed down, but two hours later she informed a manager she was feeling ill and had to go home. She did not visit a doctor until the next day, when she advised her supervisor that she wasn't feeling well and would be absent from work. On February 11, Stevenson returned to work to confront Hyre's president, screaming at him about dogs being in the building. After that encounter, Stevenson told her supervisor that she could not work and left. Stevenson continued to call in sick until February 17, when she only worked for a few hours, only to leave after feeling harassed despite having her workplace moved to accommodate her fear of stray animals. On February 23 she attempted to return to work with a doctor's note excusing at least some of her past absences, but she could not enter the building as the locks had been changed to keep her out. Hyre would also not accept her doctor's note. Stevenson's union asked the company for an explanation as to why the note was insufficient, and the doctor offered to supply whatever information the company sought. Hyre never responded to either request, and instead on March 9 notified Stevenson that she had been terminated effective February 25.

Typically, an employee is not entitled to the protections of the FMLA unless and until that employee notifies the employer of the need for the leave, either 30 days in advance or as soon as practicable if shorter. While it is the employee's burden to notify the employer, typically the employee just has to provide the employer with enough information to show that the employee believes there is an entitlement to FMLA leave. It then becomes the employer's responsibility to request additional information from the employee's doctor to confirm the FMLA entitlement.

Stevenson never told Hyre that she was missing work because of an illness. The 7th Circuit, however, found that Stevenson's case should go to a jury because a factual question existed as to whether Hyre had constructive notice of her need for FMLA leave. Constructive notice of a serious health condition may be established by either clear abnormalities in the employee's behavior or the employee's inability to communicate. The court concluded that one could find that Stevenson's behavior was so bizarre that it amounted to constructive notice of the need for leave. It was undisputed that she was a "model employee" prior to the dog incident on February 9. The company president acknowledged that her behavior on February 9, 11, and 17 was so strange that he had to change the locks: "We were concerned about Beverly coming into the workplace.... I was concerned about having a very angry employee." Thus, Hyre should have been on notice of Stevenson's need for FMLA leave:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employees calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition.

Companies have to be proactive with employees' needs for FMLA leave. If an FMLA-eligible employee has been absent from work, and you think it might be related to a medical reason, you act at your company's peril if you do not at least try to determine if the absences qualify for FMLA protection. After all, having to cover for an employee for 12 weeks is much less painful that having to litigate a termination for 12 months or more.

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